ANTOO DHIMAR, MINOR THROUGH GUARDIAN Vs. JAGATSINGH

JUDGEMENT

(1.) THIS judgment governs the disposal of another connected First Appeal No. 38 of 1959, which arises out of the same judgment. The appellant Antoo filed a suit for recovery of compensation for injury caused to him by a truck which was owned by respondents Nos. 1 and 2 and was driven by respondent No. 1 Jagatsingh. Respondent No. 3 is the Insurance Company. For convenience, we shall refer to the parties as they were arrayed in the trial Court. The following facts are no longer in dispute. On 23 -12 -1955, at about 6 p. m, the defendant Jagatsingh was driving his truck, No. CPN 123 from Mandla towards Jabaipur. When he had crossed the turning which took him to the Jabaipur Road and proceeded about a hundred yards the unfortunate accident happened. The plaintiff, who was then aged about six years, was hit by the truck and one of its wheels ran over his Left foot which was crushed and ultimately had to be amputated below the knee. The plaintiff's case is that the truck was being driven rashly and negligently; that the defendant Jagatsingh did pot take proper care to avoid the accident; and that, as a result, the plaintiff has been incapacitated for life. He claimed Rs. 60 for medical expenses, Rs. 5,000 for suffering and pain and Rs. 9,040 as general damages. He impleaded defendant No. 1 as the driver and defendant No. 2 as owner of the truck. Later, the Insurance Company was also impleaded as defendant No 3. The defendants denied that the truck was being driven at a rash speed or that the driver was in any way negligent. It was pleaded that the plaintiff with other boys, was playing in the middle of the road and bad himself dashed against the truck. The damages were denied. The Insurance Company, in addition, pleaded that the claim was barred by limitation.

(2.) THE trial Court found that defendant No. 1 was responsible for the accident and was liable to pay damages. The damages were assessed at Rs. 2,500 for suffering and Rs. 1,800 for earning capacity being affected by the loss of leg and decreed the claim for Rs. 4,300 only. As against the Insurance Company, the claim was dismissed as barred by time. The plaintiff, in his appeal, contends that the damages assessed are too low and further that the claim has wrongly been held barred by time. Defendants Nos. 1 and 2 in their appeal contend that defendant No. 1 did not drive the truck rashly and they are not liable for damages. In addition, they also state that the Insurance Company is liable, if they are held liable. The Insurance Company supports the defendants' contention that the accident was not due to negligence of the driver and contests the claim of the plaintiff as well as defendants Nos. 1 and 2 that it is liable. On the arguments of the parties, the points which call for decision are:

(3.) AS defendant No. 1 himself admits, he had seen the boys playing from a distance of fifty yards. It appears from the statements of Jaithu (P. W. 3) and Swetamber (P. W. 4) that the boys were playing nearabout the middle of the road on the tarred portion and were running here and there. All the witnesses of the plaintiff state that defendant No. 1 did not blow the horn. It is not of much consequence that the truck was to the left or right of the tarred portion which was hardly 10 feet wide; but seeing the boys in the middle of the road, defendant No. 1 should have acted with sufficient anticipation. The responsibility of a driver of a motor vehicle when he sees infants playing on the road becomes greater and he must take into account the fact that their behavior would be uncertain. The driver is under a duty to take reasonable care to avoid harm to the children. Things would have been different if the boys had suddenly appeared on the road or one of them had crossed all of a sudden while they were quietly standing on one side of the road. That would be a case of inevitable accident. That was not so in the present case. The boys were right in the middle of the road and were playing. The driver should have slowed down well in time to allow the boys to run away from the road. It may be correct that he made a last effort to save the boys but could not succeed on account of the electric pole; but that does not exonerate him from his responsibility to have taken special care on seeing infants playing on the road. Shri A. P. Sen for respondents Nos. 1 and 2 contended that the accident was due to contributory negligence of the plaintiff and so the defendants should be held liable for damages. We do not find that the plaintiff unexpectedly turned to the left as alleged by defendant No. 1. We find that the proximate cause of the accident was the negligence of defendant No. 1 in not slowing down the vehicle to a speed which could stop it in case the boys remained on the track longer than expected. We might have taken a different view of the matter if the accident had occurred to an adult pedestrian who had behaved in an uncertain manner after receiving a warning by horn being blown; but in the case of children of tender age, we cannot accept the same -standard of care. The law on this point is thus stated on page 550 of Iyear's Law of Torts (Fifth Edition, 1957): The conduct of a child in bringing about its own injury may not be a conscious act of volition or may not be below the standard of care or judgment that can be expected of children. Therefore the defence of contributory negligence will be more difficult to make out against a child than against an adult. Or in Salmond on Torts (Twelfth Edition) on page 454: